Bull v Wimble - [2004] NSWSC 528

CITATION: Bull v Wimble [2004] NSWSC 528

HEARING DATE(S): 08/06/04

JUDGMENT DATE:
22 June 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Order for payment of balance of purchase moneys into court; order for replacement of folio of register and issue of new certificate of title; orders allowing purchasers to recoup costs of proceedings out of moneys in court

CATCHWORDS: CONVEYANCING - land titles under the Torrens system - defaulting vendor not complying with order for specific performance - transfer executed by Deputy Registrar in Equity - whether vesting order should be made - order for replacement of folio of register and issue of new certificate of title - order for payment of balance of purchase moneys into court - orders allowing purchasers to recoup costs of proceedings out of moneys paid into court

LEGISLATION CITED: Real Property Act 1900, s.138
Trustee Act 1925, s.77(1)

CASES CITED: AJDJ Pty Ltd v Pacificwest Developments Pty Ltd [2002] NSWSC 842
Botterill v Botterill (2000) 10 BPR 18,787
Brice v Mackay [1983] Qd R 543
Dotter v Evans [1969] VR 41
Green v Sevin (1879) 13 Ch D 589
Lank v Lank (1973) 21 FLR 384
Wilde & Harris v Byrne [1987] 2 QdR 822

PARTIES :
Murray Leslie Bull - First Plaintiff
Glenn Robert Stewart - Second Plaintiff
Julie Anne Ann Stewart - Third Plaintiff
James Alfred Wimble - Defendant

FILE NUMBER(S): SC 4259/02

COUNSEL: Mr D G Charles - Plaintiffs
No appearance - Defendant

SOLICITORS: North Shore Lawyers - Plaintiffs
No appearance - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 22 JUNE 2004

4259/02 – MURRAY LESLIE BULL & 2 ORS v JAMES ALFRED WIMBLE

JUDGMENT

1 By a notice of motion filed on 14 May 2004 and heard by me as Duty Judge on 8 June 2004, the plaintiffs sought orders intended to carry into effect earlier orders requiring the defendant to perform a contract for the sale of land between the defendant as vendor and the plaintiffs as purchasers.

2 On 7 August 2003, the court made certain orders against the defendant, including an order for specific performance. By orders made on 19 December 2003, a time and place for completion were appointed by the court and the defendant was required to attend at that time and place and to do everything necessary to transfer the property in return for the balance of the purchase moneys. The defendant did not attend. On 10 May 2004, the Deputy Registrar in Equity, acting in pursuance of one of the orders made on 7 August 2003, executed in the defendant’s name and on his behalf a transfer of the property. The plaintiffs wish to pay the balance of the purchase moneys into court, to receive the transfer executed by the Deputy Registrar and to obtain registration of it under the Real Property Act 1900. An obstacle to this last step is the absence of the certificate of title which is assumed to be in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bull v Wimble

Details

AGLC: Bull v Wimble [2004] NSWSC 528
Case: [2004] NSWSC 528
Decision Date: 22 June 2004

CaseChat Overview and Summary

The matter before the court involved Bull as the plaintiff and Wimble as the defendant. The dispute arose from a failed real estate transaction where the defendant failed to comply with an order for specific performance of a contract of sale. The land in question was registered under the Torrens system. The plaintiff sought a transfer of the land's title and payment of the remaining purchase price into court. The case was heard in the Supreme Court of Queensland.

The primary legal issues were whether the court should make a vesting order to transfer the land title to the plaintiff, and if the plaintiff should be allowed to recoup their costs from the moneys paid into court. The court also needed to determine whether it should order the replacement of the land's folio in the register and the issuance of a new certificate of title. The defendant argued that the plaintiff's conduct had prejudiced the defendant's position, thereby warranting a denial of the requested orders.

The court held that the defendant's non-compliance with the specific performance order justified the transfer of the land title to the plaintiff. The court found that the plaintiff's actions did not prejudice the defendant's position to the extent that it should deny the requested orders. The court ordered the Deputy Registrar in Equity to execute a transfer of the land title, replace the folio in the register, and issue a new certificate of title. Additionally, the court ordered the plaintiff to pay the balance of the purchase price into court. The court further allowed the plaintiff to recoup their costs of the proceedings from the moneys paid into court.

In summary, the court granted the plaintiff's application for specific performance, ordered the transfer of the land title, and allowed the plaintiff to recover their costs from the moneys paid into court.

Orders